1. This is an appeal arising out of an application by certain decree-holders who are minors, and represented by their mother as guardian ad litem, to enforce against a mortgagor personally or by sale of any property which can be lawfully sold in execution of a personal decree against him an order for costs passed in an appellate decree of this High Court. A suit for sale was brought at a time when the money payable under the mortgage was statute-barred. It resulted in a final decree for sale, dated May, 1912. One of the mortgagors appealed from that decree. His appeal was dismissed on the 28th of May, 1913, and by the well-known authority of a Full Bench decision that decree became the final decree in the mortgage suit. Some of the mortgagors had transferred their interests and were not made parties to the appeal. This point has been relied upon by Dr. Sulaiman, for the appellants, but in the view we take of the other point in the case it is not necessary to say anything more about it. The final decree in the mortgage suit, as passed by this High Court on appeal, extended the time for payment by the mortgagor for another six months from the date thereof and went on to direct the appellant to pay to the respondents a sum of Rs. 993-10-0, or thereabouts. The question before us is what is the meaning of that decree, in other words, are the decree-holders entitled to enforce that order for costs as a simple money decree? The main difficulty in the argument before us has been the presence in the Law Reports of a by no means inconsiderable number of authorities which are somewhat difficult to reconcile. We do no propose to discuss these in detail. The court below not unnaturally decided to follow a two Judge decision of this Court reported in Dambar Singh v. Kalyan Singh (1917) I.L.R., 43 All., 109, in which case the Judges construed the decree then before them as confining the order for costs to an order making such costs recoverable only against the mortgaged property. We do not take the same view of this decision as the court below, that is to say, it cannot be treated in the way in which a two-Judge decision declaring the interpretation of a particular enactment, or laying down in definite terms some general principle of law, must be treated as a binding authority upon courts of subordinate jurisdiction. It is merely an expression of opinion upon the interpretation of that particular decree. On the other hand, there are reported cases in which Judges of this Court, my brothers Mr. Justice Piggott, Mr. Justice Tudball and Mr. Justice Chamier, and in an unreported case my brother Mr. Justice Rafiq, have construed other and somewhat similar decrees in the sense in which the appellants ask us to construe the decree now before us. All we can say is that it is impossible to say in every case where the circumstances are not necessarily the same, because one Judge has construed a decree in one way another Judge is bound to construe a similar decree in the same way. The real trouble is that all these decided cases have got into the reports at all. They bind the parties and nobody else. We think that the true solution cannot be better expressed than it is in the judgment of the learned Chief Justice of the Calcutta High Court in Mohanya Ojha v. Ram Bahadur Singh (1911) 16 C.W.N., 731, in which he pointed out that each case must depend upon its own decree. There is nothing in this decree to indicate any special restriction upon the rights given to the decree-holders. The ordinary penalty of an unsuccessful appellant is that he must personally pay the coats of his appeal. There is no reason or principle why an exception should be made in favour of mortgagors. It would be very much against the interests of the mortgagors if it were so, because were there such a recognized principle in every appeal brought by a mortgagor, a mortgagee, it seems to me, would have an irresistible claim for security for costs, otherwise he would be compelled to run the risk of the dilatory and obstructive proceedings of the mortgagor exhausting the value of the security, and being left in the cold as regards the coats which the law clearly contemplates he ought to recover. Nor is there any reason why the right of the mortgagee to recover the cost of the failure of an unsuccessful appeal by a mortgagor should be held to be limited to either one or other of his alternative remedies or against the mortgaged property. The ordinary rule in equity is that a mortgagee is entitled to recover against a mortgagor all the costs and expenses of maintaining or enforcing the security provided he acts reasonably and according to law, and further to add them to his security, that is to say, he is given both remedies, the personal remedy against the debtor and, the remedy in specie against his security. Section 35 of the Code provides that costs shall be in the discretion of the court, but that when they do not follow the event the court shall state its reasons. The event in the case of an unsuccessful appeal by the mortgagor is obvious. By bringing the appeal at all he has impliedly undertaken, and made himself liable personally, to pay any expenditure which his failure may throw upon the opponent. And speaking for myself, and I think my brother agrees, it seems to me that the burden is upon an unsuccessful appellant, if he wants to exclude any alternative under which he may be eventually made responsible for the payment of the costs which the law intends in the ordinary course he shall pay, to make an application to the court dismissing his appeal for that purpose, and to see to it that the decree makes it clear that that head of liability is expressly excluded. And it ought to be clearly understood and cannot be too strongly impressed upon members of the Bar in such cases to see to it that the decree ultimately drawn up is drawn up in accordance with the recognized principle which I have just enunciated and the decree-writers in the office ought to pay particular attention to this matter. In our opinion the plaintiffs, now known in the High Court's decree as the respondents, should get their costs against the appellant, and the decree renders the appellant personally liable for the same. On the face of it the application in this case is statute-barred. Mr. Jang Bahadur Lal having a decision in his favour in the court below, was entitled to take the objection here. It has not been dealt with at all on the merits in the court below, and we have had therefore to be careful to see whether we ought not to send the case back for further consideration. The facts are not in dispute. It is admitted that the decree-holders are minors, and the only fact relied upon to take the application out of the saving clause of Section 6 of the Limitation Act is the fact that Musammat Amina Bibi is their mother and herself their natural guardian or what the Privy Council calls the de facto guardian and that she is also guardian ad litem of these minors. If it had been up to that time debatable ground in India, it has now, by a recent judgment of the Privy Council reported in Imambandi v. Mutsaddi (1918) I.L.R. 45 Calc., 878, been made quite clear and binding upon us that a Muhammadan mother who is de facto guardian in such circumstances as these, has no authority to transfer or deal with the property of the minors, and therefore obviously could not give a discharge for any payment made to the minors. Therefore this guardian does not come within the exception to Section 6 which is defined in Section 7. Secondly, it is said that she was guardian ad litem; but Order XXXII, Rule 6, makes it quite clear that she could not give a discharge or settle or compromise on behalf of the minors without the leave of the court. That in itself shows that she does not correspond to the definition of 'a person able to give a discharge' under Section 7. Under these circumstances it would be idle to send the case back. It is quite clear that the application was within time and must succeed. I would, therefore, allow the appeal, set aside the decree of the court below and dismiss the objection of the judgment-debtor with costs.
2. I concur. On the main question raised by this appeal I only want to add this much. In a suit on a mortgage no one denies that the plaintiff is entitled to add to his mortgage-debt and to recover as against the mortgage security any costs to which he may be put in enforcing the said security. I do not think that Order XXXIV, Rule 10, of the Code of Civil Procedure does anything more than recognize this principle. As regards the costs incurred in prosecuting or defending an appeal against a preliminary decree for sale, I think some learned Judges of this Court have used language suggesting a doubt as to whether such costs are covered at all by the provisions of Order XXXIV, Rule 10, above-mentioned, but I do not understand that the general principle as to the right of the mortgagee to claim to have these costs included in the final decree for sale against the property, where such final decree is sought and obtained after the decision of the appeal in which those costs were incurred, has been doubted. At the same time this Court has, I think, consistently followed the rule that it is within the discretion of an appellate court, dealing with an appeal against a preliminary decree in a mortgage suit, to award costs as a personal money-decree against a single judgment-debtor or group of judgment-debtors. In some cases that would seem the most equitable thing to do, and if the mortgagee himself, as in the present case, desires for obvious reasons to have a personal decree in respect of such costs, and not a decree enforceable against a security which has been found insufficient for the satisfaction of the original mortgage-debt, there is certainly no reason in law why he should not obtain a personal decree. If these propositions of law are sound, as I believe them to be, then the question in the present case, as in many other reported cases, resolves itself into one of the interpretation of the decree actually passed by the appellate court. Taking this view of the case, I am not prepared to say that the appellate decree of this Court is not reasonably capable of being read as a personal decree against that particular defendant, who alone out of a number of others had seen fit to carry the litigation before this Court in appeal. I could not dissent from the decision arrived at by my learned colleague unless I were prepared clearly and definitely to say that the decree we are construing was incapable of such a construction, and this I am not prepared to do. The order which we propose to pass is certainly a fair and equitable one, particularly in view of the fact that the mortgage security has been exhausted. I concur in the proposed order.
3. The appeal is allowed, the decree of the Court below is set aside and the objection of the judgment-debtor dismissed with costs.